Chief J. O. Edewor V. Chief M. Uwegba & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

A fairly similar situation arose in Oloyo v. Aiegbe (1983) 2 S.C.N.L.R. 35 where this Court among other things had to decide whether the word ‘shall’ used in section 103(1) of the Constitution of the Federal Republic of NIGERIA 1979 had a peremptory or directory meaning.

There I was of the view that –

“there is no general rule for determining when the use of the word ‘shall’ implies a peremptory or directory mandate but as Lord Campbell L.C. said in Liverpool Borough Bank v. Turner (1860) 2 De G.F & J 582 at pp. 587 and 588 it is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed”ng Judgment): In this suit which emanated from the Orerokpe Judicial Division of the High Court of Bendel State, the Plaintiffs/Respondents (hereinafter known as respondents) had claimed against the Defendant/Appellant (hereinafter known as Appellant) and the Defendants/Respondents in these terms:

“(a) a declaration that in accordance with the age long tradition, native law, custom, the usages and the Constitution of the Agbon Clan, the tenure of office of the Otota of Agbon terminates automatically, on the demise of the Ovie of AGBON subject to his remaining in office until the next Ovie and the next Otota are named and installed;

(c) a declaration that in accordance with the tradition, native law, custom, the usages and the constitution of the Agbon Clan, when an Otota dies before the Ovie, it is the right of the said deceased Otota’s sub-clan to elect a new Otota to hold office for the duration of the life of the Ovie;

(d) a declaration that the sub-clan entitled to provide a candidate or candidates to fill the vacant office of the Otota of AGBON is the Kokori sub-clan;

(e) a declaration that the purported Chieftaincy Declaration made by the Chieftaincy Committee of the Western Urhobo District Council on 4th January, 1962 relating to the Otota of Agbon Chieftaincy is irregular, wrong, unconstitutional null and void, and contrary to the age-long tradition, native law, custom, the usages and the Constitution of the AGBON Clan and should be set aside’

(e) a declaration that the directive of the Governor-in-Council of Bendel State contained in a letter No.CH.506/351 dated 13th April, 1982 from the Ministry of Local Government and Chieftaincy Affairs requesting the King-makers to consider the nomination of the 4th Defendant as the Otota of Agbon as irregular, illegal, unconstitutional, incompetent, null and void and of no effect whatsoever;

(f) a declaration that the 4th defendant has not been duly appointed as the Otota of Agbon as required by law and that the purported approval of the alleged appointment of the 4th Defendant as the Otota of Agbon by the 2nd defendant as published in the Bendel State Legal Notice No.4 of 1982 dated 26th May, 1982 is irregular, wrongful, illegal, contrary to the customary law, unconstitutional, null and void and of no effect and should be set aside;

(g) the plaintiffs claim perpetual injunction restraining the defendants by themselves, their servants agents or privies or howsoever otherwise from taking any action or any steps on the said purported Chieftaincy Declaration of 1962 or on the said letter dated 13th April, 1982;

(h) the plaintiffs also claim perpetual injunction restraining:-

(a) the 1st, 2nd, 3rd defendants by themselves, their servants otherwise from installing or recognising or taking any steps in recognising or installing or causing to be installed or recognised the 4th defendant as the Otota of Agbon and

(b) restraining the 4th defendant by himself, his servants agents or privies or howsoever otherwise from holding himself out as the Otota of Agbon or wearing any regalia of the Otota of Agbon or permitting himself or taking any steps to be installed or recognised as Otota of Agbon or performing or causing to be performed any act or function of or ceremony connected with his installation as the Otota of Agbon.”

Pleadings were ordered, filed and duly exchanged. At the end of the trial in the High Court, Akenzua, l. dismissed the respondent’s claims in their entirety. In the concluding part of his judgment the learned trial Judge said:

“By virtue of the Declaration of 1962 and by virtue of Section 23 of the Traditional Rulers and Chiefs Law 1979, Bendel State Law (which is also on all fours with Section 9, Chiefs Law, Cap.19 of Western Region of NIGERIA under which the 1962 Declaration came into existence) I am bound to deem Exhibit V as the customary law of Agbon Clan in so far as the selection and appointment of the 4th defendant as the Otota of Agbon Clan is concerned. Therefore claims in reliefs a, b. and c in the Amended writ of summons cannot be made and are consequently dismissed.”

He also proceeded to dismiss claims (e), (f) and (g). The Respondents appealed to the Court of Appeal (Belgore, Mustapha, Ajose-Adeogun, JJCA.) which on 3rd December, 1985 allowed their appeal but granted reliefs only in respect of claims (a), (e), (f) and (h). In other words claims (b), (c), (d), (g), (h) and (i) were dismissed. Whereupon the appellant appealed to this Court. There is no cross-appeal. Three grounds of appeal were filed and they were in these terms:-

(1) The learned Justices of the Court of Appeal erred in law in failing to dismiss the appeal of the plaintiffs/respondents herein (the appellants in the Court of Appeal) when, on the pleadings and the evidence in the trial High Court it was clear that the Plaintiffs/Respondents had not established their locus standi to institute the suit as Plaintiffs. (Particulars were included).

(2) The learned Justices of the Court of Appeal erred in law when they awarded the declarations relating to native laws and customs in favour of the Plaintiffs/Respondents as sought by them in the face of the existing Declaration of 1962 in respect of the Otota of Agbon Chieftaincy Exhibit V.

(3) Judgment is against the weight of evidence.”

In his brief of argument learned Senior Advocate for the Appellant, Chief Bayo Kehinde, submitted that there were 2 issues in the appeal namely:

(1) Whether the Plaintiffs (i.e. Respondents) had locus standi at all to institute the action;

(2) Whether there can be any declaration of customary law relating to the appointment of the Otota of Agbon outside the 1962 Declaration (Exhibit V) in the circumstances of this case.

Learned Senior Advocate for the Respondents, Kehinde Sofola was of the view that the issues set down by the Appellant’s Counsel were too narrow. He thought the issues should include the following:-

(a) Whether the Bendel State Government’s directive requesting the Kingmakers to consider the nomination of the Appellant as the Otota of Agbon was irregular, illegal, unconstitutional, incompetent, null and void and of no effect whatsoever; and

(b) whether the appellant had been duly appointed as the Otota of Agbon as required by law and whether the purported approval of the Appellant’s appointment as the Otota is irregular, wrongful, illegal, contrary to the customary law, unconstitutional, null and void and of no effect.”

I think that these and the issues contained in the appellant’s brief would bring out all the matters in controversy in this Suit. As previously indicated, both parties’ counsel, as well as Miss Obaseki, learned Principal state Counsel, filed briefs of argument which have been most useful in resolving the issues in this appeal. In oral argument, Chief Kehinde S.A.N., made the following submissions:-

(i) That Exhibit S.C.1 (i.e. Exhibit V in the lower courts) the Declaration of 1962 made pursuant to Section 9 of the Chiefs Law of Western Nigeria (now Section 9, Cap.37 Laws of Bendel State 1976) is the Customary Law of the AGBON CLAN regulating the selection to the OTOTA and to the exclusion of any other customary law.

(ii) That Exhibits B and D – the Constitution of AGBON CLAN were made in 1959,3 years before the Declaration of 1962 and so if the Respondents had wanted them to be part of Exhibit S.C.1 they would have done so in 1962.

(iii) That the Court of Appeal was in effect importing paragraph 25 of Exhibit B – which says that the tenure of office of the Otota terminates automatically on the death of the Ovie) – into Exhibit S.C.1.

(iv) That, with respect to Exhibit S.C. 1, vacancy exists on the death or removal of the Otota. Section 2 of Exhibit S.C.I which talks of successive vacancies must relate to vacancy of Otota.

(v) As to appointment under Section 22 or 23 of Traditional Rulers and Chiefs Edict No.16 of 1979, says it is neither here nor there. If the appellant was appointed under Section 22 but it ought to have been under Section 23 it is irrelevant. What was relevant was whether the appellant was entitled to be appointed. He referred to Falobi v. Falobi (1976) 9-10, S.C.1.

Miss Obaseki, learned Principal State Counsel representing the 1-3rd defendants/respondents who incidentally did not appeal against the decision of the Court of Appeal, submitted as follows:-

(i) That Exhibits B and D i.e. the Constitution of Agbon Clan cannot be relied on by the plaintiffs/respondents as representing the Customary law in relation to the appointment of an Otota. Exhibit S.C.1 which is the 1962 Declaration is the relevant law.

(ii) That the appointment of the appellant was made in accordance with Exhibit S.C.1. Referring to Exhibit T, the letter to the Ovie, submits that since the Ovie did not approve, the Governor took action.

(iii) That it was under Section 22(1) and (2) of Edict No. 16 of 1979 that the Governor gave approval. Referring to Exhibit K which showed that there was a dispute submits that the Governor acted under Section 22(6)(a) and (b) of Edict No.16 of 1979.

Mr. Kehinde Sofola, S.A.N., learned Senior Advocate for the respondents submitted……………………….

(i) That Ist-3rd defendants/respondents seemed satisfied with the judgment of the Court of Appeal and so did not appeal to this Court.

(ii) That Exhibits S.C.1 is not exhaustive. Referring to section 9 of the Chiefs Law submits that it deals only with selection.

(iii) That referring to Section 4 of the Chiefs Law, cap.37 Law of Bendel State 1976, since Exhibit S.C.1 is limited to selection or nomination, the candidate must be presented to the Kingmakers for appointment before Government can act. He further submitted that where the Kingmakers refuse to accept a selection there is a dispute, and there must be an inquiry pursuant to Section 22(7) of the Edict No. 16 of 1979. The word may in Subsection 7 he contended ought to be interpreted as being mandatory.

(iv) That referring to Section 30(3)(b) Chiefs Law of Western Nigeria, 1959 , Exhibit C was final. Exhibit S.C.1 does not relate to the Ovie. Further submitted that the Otota is a rotatory title from one sub-clan to another not to individuals, and there was no conflict between Exhibit S.C.1 and Exhibit C.

(v) That Exhibit S.C.1 does not affect the respondent’s case as there must have been custom before 1953.

(vi) That for the Governor to appoint appellant without complying with the law or Exhibit S.C.1 is irregular. The Kingmakers, he said, had made no appointment.

In his reply Chief Kehinde, S.A.N. pointed out that the Ovie’s refusal to act did not mean dispute. He also contended that as to dispute there was no need for inquiry as the Executive Council could settle a dispute pursuant to Section 22(3) of Chiefs Edict No.16, 1979. As to Section 30(3)(b) of the Chiefs Law of Western Nigeria (now Section 43(3)(b) of the Chief Law of Bendel State of 1976), he submitted that this applied to a dispute in which no declaration exists. Exhibit C he said is for Chieftaincy when there is no declaration.

I have deliberately set down the submissions of learned Counsel as these clearly bring out the matters in controversy between the parties. It seems to me, however, that the main issue on which this whole case revolves is what happens when an Otota dies when the Ovie of Agbon Clan is still alive. In paragraph 14 of the respondent’s statement of Claim, the respondents averred as follows:

“14. The Plaintiffs further contend that when an Otota dies before the Ovie, it is the right of the said deceased Otota’s sub-clan to elect a new Otota to hold office for the duration of the life of the incumbent Ovie. The Plaintiffs will rely on Clause 25 of the said Constitution of the Agbon Clan at the trial of this action.” The Ist-3rd defendants/respondents denied this assertion and in paragraph 8 of their statement of defence rather averred that “the defendants further state that where as in this case the Kokori sub-clan loses the Otota, the next sub-clan entitled to provide a candidate to fill the vacancy of the Otota of Agbon Chieftaincy title is Eku Sub-Clan according to the established customary law regulating the appointment to the Agbon Chieftaincy. The defendants shall rely on the 1962 Declaration pleaded in paragraph 5 above.” The 4th defendant appellant herein in paragraph 13 of his statement of defence averred that “the defendant categorically and vehemently denies paragraphs 10, 11, 12, 13 and 14 of the statement of claim.”

In evidence at the trial, Michael Oregun stated that when an Otota dies during the life of an Ovie, Ototaship moves to the next sub-clan. The appellant too stated that if the Otota is still living in a sub-clan, if the Ovie dies. The Otota moves down to the next sub-clan down the ladder. He also stated in answer to a question from Court that if the Otota died while the Ovie is still alive, the stool of Otota moves to the next sub-clan down the ladder. The pleading by the respondents in paragraph 14 of their statement of claim was a restatement of paragraph 25 of the Constitution of Agbon Clan dated 26th July, 1959. The two sub-paragraphs are in these terms.

“25(i) Tenure of Otota’s office lapses automatically with the demise of the Ovie subject to his remaining in office until the next Ovie and the next Otota are named and installed.

(ii) If an Otota dies before the Ovie, it is the right of the deceased’s sub-clan to elect a new Otota to serve for the rest life time of the Ovie.”

In evidence at the trial the 1st Plaintiff/respondent Chief Michael Uwegbo stated as follows:-

“The Otota of Agbon is appointed in rotation i.e. when the Ovie of Agbon is in Okpara, the most senior of the six sub-clans the Otota comes from Kokori, the most next senior. When the Ovie dies the Otota will leave Kokori the next most senior to Okpara and will go to the 3rd senior village in Agbon; but when the Ovie is alive and the Otota dies, the next senior to Okpara which is Kokori will still produce the Otota. This is a tradition in Agbon Clan and contained in the Constitution of Ovie Council of Chiefs.”

Further he said that –

“the law that applies in the appointment of an Otota are both the Constitution approved by the Ovie-in-Council and the Western Chieftaincy Ruling of 1958.”

The last Otota before this dispute was Chief Obouo Emanuwa who was from Kokori sub-clan and who died while the Ovie was alive, and the bone of contention was whether his sub-clan should still produce the Otota or. as appellant contended, an Otota should come from the next Senior Sub-Clan which was Eku.

Although I shall return to it in this judgment, let me state that neither of the two lower courts resolved the conflict in the pleadings and evidence of the parties on this all important issue. The question then is whether it could be resolved from the 1962 Declaration Exhibit S.C.1 as the appellant contends, or by paragraph 25 of the Constitution of Agbon Clan 1959. Exhibits B and D as the Respondents contend. I shall now examine both contentions.

Exhibit S.C.1 which was tendered in this court as such after a heated debate as to its authenticity, was infact tendered in the High Court as Exhibit V. Because of its importance in this case I hereby set it down fully.

EXHIBITS. C. I

“DECLARATION MADE UNDER SECTION 4(3) OF

THE CHIEFS LAW, CAP 19, OFTHE CUSTOMARY LAW

REGULATING AN APPOINTMENT OF THE OTOTA

OF AGBON CHIEFTAINCY AND THE IDENTITY OF EACH VILLAGE.

1. There are six villages and the identity of each village is –

(i) Kokori

(ii) Eku

(iii) Orokpor

(iv) Ovu

(v) Igun

(vi) Okpara

2. The order of rotation in which the respective villages are entitled to provide candidates to fill successive vacancies in this Chieftaincy shall be:-

(i) Kokori

(ii) Eku

(iii) Orhkpor

(iv) Ovu

(v) Igun

(vi) Okpara (Last Village)

3. The persons who may be proposed as candidates by a village entitled to fill a vacancy in the Chieftaincy shall be:-

(i) Male members of the village who hold the title of Ohovbore or Okakuro i.e. person granted the title of Ohovbore or Okakuro and recognised as Ehovbore or Ekakuro of Agbon by the Ovie of Agbon Clan

(ii) Natives of the Village, i.e. persons whose fathers or mothers were born in the Village.

4. There are 60 Kingmakers in respect of this title who are the following Ehovbore:-

Ten most Senior Ehovbore: from each of the six villages referred to in paragraphs 1 and 2 above. For the avoidance of doubt it is hereby declared that seniority amongst Ehovbore shall be determined by their Chronological Order of Appointment.

5. The method of nomination by each Village is as follows:-

(i) The Village whose turn it is to provide a candidate to succeed to this Chieftaincy shall nominate such candidate or candidates at a meeting of the Ehovbore of that Village to be convened by the Okpako of all the Ehovbore, that is, the Senior Obovbore.

(ii) The name(s) of the candidate or candidates so selected shall be submitted to the Kingmakers.

(6) If the name of only one candidate is submitted by the Village who appears to the Kingmakers to be qualified and not disqualified, they shall declare him to be appointed.

If the names of more than one candidate are submitted who appears to the Kingmakers to be qualified and not disqualified the names of the candidates shall be submitted to the vote of the Kingmakers and the candidate who obtains the majority of the votes of the Kingmakers present and voting shall be declared appointed.

(ii) If the Village entitled to provide a candidate or candidates failed to submit the name or names of a candidate or candidates within 14 days of being requested to do so by the Secretary of the Council, the Secretary shall make an announcement accordingly and the Village next entitled according to the order of rotation specified in paragraph 2 of this Declaration shall be entitled to provide a candidate or candidates. MADE by the Chieftaincy Committee of the Western Urhobo District Council which has been designated as “the competent Council” by W.R. L.N. 22 of 1959 and signed by the Chairman and Secretary of the Committee this 4th day of January, 1962.

Sgd.

Chairman

Chieftaincy Committee

Western Urhobo District Council

Sgd.

Secretary,

Chieftaincy Committee,
Western Urhobo District Council
Approved this 13th day of February, 1962.
Sgd.

Minister of Chieftaincy Affairs

Registered this 14th day of February, 1962.

Certified true copy

Sgd. F.E. Agboaye,

Permanent Secretary,

Ministry of Local Government,

Ministry of Chieftaincy Affairs.”

Benin City. 20/11/86

(Italics mine)

As can be seen it was a Declaration made by the Chieftaincy Committee of the Western Urhobo District Council on 4th January, 1962. It is a Declaration as to the Customary law of AGBON Clan as to the Otota Chieftaincy of AGBON Clan, and was made pursuant to Section 4(1) of the Chiefs Law Cap 19 Laws of Western Nigeria 1959. That section is in these terms:-

“4(i) Subject to the provisions of this law, the Committee of a competent Council –

(a) may; and

(b) shall if so required by the Minister make a declaration in writing stating the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy.”

by Section 8(1) and (2) thereof

“Every declaration of the Committee of a competent Council approved by the Minister and every declaration made by the Minister shall be registered and retained in safe custody by such officer of the Ministry of Local Government as the Minister may direct.

(ii) No declaration shall come into effect until it is so registered” Section 9 of the same Chiefs Law provides that –

“Where a declaration in respect of a recognised chieftaincy is registered under this Part, the matters therein stated (including the recommendations under paragraph (b) of sub-section (2) of Section 4 shall be deemed to be the customary law regulating the selection of a person to be the holder of that chieftaincy to the exclusion of any other customary usage or rule.” (Italics mine)

Sections 4, 8 and 9 of the Chiefs Law, Cap 19 of Western Nigeria were enacted in similar terms in the Chiefs Law, Cap. 37 Laws of Bendel State 1976. Although Cap. 19 Laws of Western Nigeria was repealed by Cap. 37 Laws of Bendel State 1976, Section 41(1) of the latter law provides that-

“subject to the provisions of this section, every declaration –

(a) made under the provisions of part 2 of the repealed Law;

(b) registered with a local government inspector under the provisions of Part 2 of the Repealed law shall have effect as if it had been made or registered as the case may be, under the provisions of Part 2 of this law.” Then Section 52 of the Traditional Rulers and Chiefs Edict No, 16 of Bendel State 1979 provides that –

“The enactments listed in the Fourth schedule to this Edict are hereby repealed to the extent specified herein but without prejudice to the validity of any act or thing previously done thereunder.”

Among the enactments repealed by the Chiefs Edict was the Chiefs Law, Cap.37 Laws of Bendel State 1976.

Before examining Exhibit S.C.I to determine whether it is of any assistance in resolving the conflict to which I had earlier made reference, I think I should first deal with Exhibits B, D and C. Exhibits Band D are the Constitution of the AGBON CLAN dated July, 1959. Exhibit B which is the unattested version of it, and Exhibit D which is the attested version were not copied in the records but were available during the hearing in this Court. I have earlier made reference to paragraph 25 in that Constitution which is the centre of the controversy between the parties. Since it has not been accepted by the appellant as the custom of AGBON, I can only regard it as a matter in dispute. The 1959 Constitution was not a Declaration of the Customary Law of AGBON CLAN pursuant to Section 4 of the Law of Western Nigeria 1957. I cannot therefore regard it as conclusive on this disputed aspect of the custom of AGBON CLAN. Besides, I am persuaded that if it was the intention of the AGBON CLAN that these two paragraphs and the other portions of the Constitution made in 1959 be part of the Custom of AGBON CLAN they would have been included in Exhibit S.C.1 a Declaration made by the same Community in 1962. I would therefore disregard the Constitution of 1959 for purposes of this case. Then there is Exhibit C. This was a letter from the Ministry of Local Government Western Region, Ibadan to the Local Government Adviser, Urhobo Division, Ughelli. It was No. C.B.39/1/210, 11th February, 1958.

AGBON CHIEFTAINCY DISPUTES

I am directed to refer to your files Nos. 17/1 and 17/1A and to inform you that the Executive Council has ruled that the dispute as to the Chieftaincies of Ovie of AGBON and OTOTA of AGBON should be determined in accordance with the following formula:-

“The Ovie shall come from each of the six towns of the Clan in the accepted order of seniority starting with Okpara. In the event of there being more than one candidate from the town whose turn it is there shall be an election by secret ballot by the registered voters of the town.” Government has decided the order of rotation to be as follows:-

OVIE OTOTA

I.Okpara 1. Kokori

2. Kokori 2. Eku
3. Eku 3. Orhokpor
4. Orhokpor 4. Ovu
5. Ovu 5. Igun
6. Igun 6.Okpara
7. I am to add that as this decision was taken under Section 30(3)(b) of the Chiefs Law, 1957, Government’s ruling is final and is not open to question in any Court.
8. I enclose 20 extra copies of this letter for distribution by you to the Western Urhobo District Council, and to other interested bodies as you think fit e.g. the Kokori Progress Union (your letter No. 1338/1/200 of the 5th of December,

1957 refers).

D.A. Murray,

Permanent Secretary,

Ministry of Local Government”

Again there is nothing on the face of this letter dealing with the vexed question of what happens when an Otota dies while the Ovie is still alive.

The respondents have interpreted paragraph 2 of the letter to mean that once the Ovie is alive and comes from Okpara the Otota must come from Kokori. In other words, if the Otota from Kokori dies in such circumstances, another Otota must come from Kokori. I am unable to regard such an interpretation as conclusive on the customary law on this point in the face of the hot contest over it between the parties. Besides, Section 30(3)(b) of the Chiefs Law 1957 under which the decision in Exhibit C was taken applies to cases of Chieftaincy dispute in which there is no declaration in effect. The Section provides as follows:-

“30(3)(a) Where it appears to the Minister that there is a dispute as to the appointment to any recognised chieftaincy in respect of which no declaration has effect, the Minister may notify the competent council that a dispute exists in respect of the chieftaincy and thereupon –

(i) ………………….

(ii) …………………

(b) The report of the inquiry shall be submitted to the Governor-in-Council who may give his decision with respect to the appointment in dispute and any such decision shall be final and shall not be open to question in any Court.”

In 1958 when there was no declaration as to AGBON CLAN CUSTOMARY LAW, Exhibit C was binding and conclusive. In fact action was taken on it on 12/3/58 by the Secretary of the Western Urhobo District Council, See Exhibit U. But that cannot be the situation after the Declaration of 1962 Exhibit S.C.1 which under the law must become the statement of the Customary Law of the Clan at least on the Otota Chieftaincy. It is also significant that although a copy of this letter Exhibit 6 was served on the Western Urhobo District Council, it was not found necessary to include its contents in the Declaration which was made in 1962. I am of the view that Exhibit C must also be ignored for purposes of this case. This leads me to Exhibit S.C.1 the contents of which I have set down earlier in this judgment. It is unarguable that since the Declaration was made pursuant to Section 4 of Cap. 19 of 1959 (or Section 4 of Cap.37 of Bendel State 1976) it is the customary law of AGBON Clan on the Otota Chieftaincy. For purposes of emphasis Section 9 thereof includes the words “shall be deemed to be the customary law regulating the selection of a person to be the holder of that chieftaincy to the exclusion of any other customary usage or rule.” Exhibit S.C.1 deals only with the Otota Chieftaincy which is in dispute in this Suit. But this is by no means the end of the matter. Does Exhibit S.C.1 on the face of it contain a solution to the vexed question of the customary law when an Otota dies while the Ovie is alive I am afraid it does not. One characteristic of Exhibit S.C.1 which cannot be argued about is that it is scanty, and cannot be said to be exhaustive. Section 2 of Exhibit S.C. 1 provides that the order of rotation in which the respective villages are entitled to provide candidates to fill successive vacancies in this chieftaincy shall be:-

(i) Kokori (ii) Eku (iii) Orokpor

(iv) Ovu (v) Igun (vi) Okpara(last village)

Chief Kehinde had argued that by this rotation the Otota is to succeed an immediate past Otota, Not that whilst the Ovie is living, succession of an Otota is to be from the same sub-clan of the immediate past Otota and not from the order of rotation. He was of the view that vacancy exists on the death, removal or resignation of the Otota. The vacancy he said depended on the Otota’s life not on the life of the Ovie. If the Otota died, the next village or sub-clan would produce the next Otota.

In their pleadings (paragraphs 13 and 14) the respondents clearly linked the tenure of office of the Otota to the Ovie. If the Ovie died, the Otota would automatically cease and the next sub-clan would produce the new Otota. If the Ovie is alive when an Otota dies, the same sub-clan that produced the deceased Otota produces his successor. Although the appellant in his pleading vehemently denied these averments, his witness Michael Orogun, under cross-examination seemed to have accepted that there was a linkage between the tenure of office of the Ovie and the Otota. He said,

“The tenure of an Otota will terminate and move to the next subclan in seniority on the death of the Ovie. If the Ovie of Agbon dies, Ovieship goes to the next sub-clan in seniority while the Otota is still living. When this occurs the Otota will be asked to be nominated from the next sub-clan if both happen to be in the same sub-clan. It is a right for sub-clans not of individual. It is true to say that the tenure of an Otota is controlled by the life of Ovie.”

The appellant himself under cross-examination admitted that ‘The right of an Ototaship is for the sub-clan and not for the individual.” As for the relationship between the Ovie and the Otota he said –

“Otota’s office is very closely related to that of the Ovie. Otota’s Office is next in seniority to that of the Ovie……. ……… I know that while the Ovie is in Okpara, the most senior village next to Okpara is Kokori. When the reigning Ovie dies, Ovieship moves down the ladder to the next village. Even if the Otota is still living in a sub-clan, if the Ovie dies, the Otota moves down to the next sub-clan down the ladder”……….

In answer to a question from the Court he said that if the Otota died while the Ovie is still living, “the stool of Otota moves to the next sub-clan down the ladder.”

In the light of the evidence of the appellant and his witness, I am unable to accept the interpretation which Chief Kehinde has given to successive vacancies in Subsection 2 of Exhibit S.C. 1. As it is, the vacancy could occur on the death of the Ovie and not solely on the death of an incumbent Otota as he contended. A vacancy could occur, on Chief Kehinde’s client’s case, if the Otota died while the Ovie was still living but, in Kehinde Sofola’s clients’ case, there would be no vacancy at all since the same sub-clan would field a new Otota.

Furthermore, Section 5 of Exhibit S.C.1 provides as follows:”

The method of nomination by each village is as follows:- Otota

(i) The Village whose turn it is to provide a candidate to succeed to this chieftaincy shall nominate such candidate or candidates at a meeting of the Ehovbore of that village to be convened by the Okpako of all the Ehovbore, that is, the Senior Ehovbore.”

(Italics mine)

In the light of the inconclusiveness of Section 2 of Exhibit S.C.1, which village was it its turn to provide the next Otota That answer is not available from Exhibit S.C.1. From the records it is clear that the matter of which village it was its turn to select the next Otota was in controversy. The appellant in the belief that it was the turn of his sub-clan Eku was selected by his village pursuant to Section 5(1) of Exhibit S.C.1. By the Letter Exhibit Y dated 14th July, 1976 the Ovie was informed of his nomination. The letter read as follows:

Office of the Okaorho.

Okaorho’s Palace.

Eku,

14th July. 1976

The Ovie of Agbon.

Okpara 1,

P.O.Box 1,

Agbon.

Dear Sir,

NOMINATION OF OTOTA OF AGBON

At a meeting of the Okakuros and Oghovwores held on the 1st July, 1976 at Eku, Chief James Ogboko Edewor was unanimously elected as the Otota of Agbon in my Palace at Eku and he was presented to Eku Community. This was in accordance with the Rules and Regulations of Declaration of Aghon Chieftaincy Customary Law dated 14th February, 1962.

Yours faithfully.

P.T.I.

Okaorho of Eku

Oyiihomuona Ayevworho”

But the Kokori sub-clan pressed their claim on the Ovie. In a letter dated 28th July, 1976 they wrote as follows:

“His Royal Highness Okpara 1,

The Ovie of Agbon,

Okpara Inland.

Your Royal Highness,

The Vacant Stool of Otota of Agbon

Appointment of:

We the undersigned, who are Chiefs and elders of Kokori subclan acting on behalf of Kokori people wish to draw the attention of your Royal Highness to the vacant stool of the Otota of AGBON following the death of the former holder Chief Obode Emanuwa in January, 1976, and to request your ‘Royal Highness to now call upon Kokori sub-clan to nominate a candidate or candidates to fill the said vacant post. In doing so, we further want to draw the attention of your Royal Highness to Clause 25(1) and (ii) of the Constitution of AGBON Clan dated the 26th day of July, 1959 which spells out in very clear language the rotational procedure in the appointment of the Otota of AGBON from the six sub-clans as follows:-

………………………

……………………….

……………………….

“According to letter No. OD39/1/219 of 11th February, 1958 from the Permanent Secretary, Ministry of Local Government, Ibadan, conveying Government directives in respect of Agbon Chieftaincy disputes the Government directed that the posts of Ovie and Otota of AGBON should rotate as follows:-

OVIE OTOTA

1.0kpara 1. Kokori

2.Kokori 2. Eku

3.Eku 3. Orhokpor

4.Orhokpor 4. Ovu

5.Ovu 5. Igun

6. Igun 6. Okpara

Thus while Okpara is on the throne of Ovie, the Otota must come from Kokori. This is consistent with the provisions of the AGBON Constitution referred to above. If the Constitution of AGBON Clan is read in conjunction with the directives of the Government as contained in the letter of 11th February, 1958, together with the Chieftaincy Declaration relating to the appointment of the Otota of AGBON dated 13th February, 1962, it will be clear that it is the turn of Kokori to nominate a candidate or candidates for the vacant stool of the Otota of Agbon…………..We remain your Very Loyal subjects

(1) Sgd. O. Akposheri

(2) Sgd.

(3) Sgd. O.O. Ojarikro

(4) Sgd. P.O. Delekor

For and on behalf of Kokori People”

In a letter Exhibit N dated 20th August, 1976 the AGBON Council of Chiefs wrote to The Honourable Commissioner for Chieftaincy Affairs and Culture, Benin City in these terms-

“Dear Sir,

VACANT STOOL OF THE OTOTA OF AGBON

I am directed to refer to matters connected with the above subject and to inform you that Agbon Council of Chiefs met for the third time on the 15th August, 1976 to deliberate on the registered declaration and after various shades of opinion, took the following decision.

…… (3) That in the light of this they have found to their utter dismay that the present registered declaration appears ambiguous and unrealistic since it neither fully reflects their established custom nor the spirit of the constitution or even previous government rulings and decisions on these chieftaincies. In all honesty, it seems to them to be in direct conflict with “the more important aspects of the mutual declaration of Agbon people in the appointment of the Otota.

……………………………

5. That up till the time after the death of the former incumbent of the title, late Chief Obodo Emanuwa, nothing was known or heard about the said registered declaration. We therefore insist that a good and reliable chieftaincy declaration ought to be discussed and accepted by the people directly concerned………….

Yours loyally,

Sgd. Chief O.O. Onovie,

Secretary,

Agbon Council of Chiefs”

In another letter Exhibit N dated 3rd May, 1982 the Agbon Council of Chiefs wrote to the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs, Benin City as follows:

“Dear Sir,

Appointment of the Otota of Agbon

Further to my previous letter dated 16th April, 1982, on the above subject, I am directed to inform you as follows:-

“3. That after a heated deliberation it was concluded that the attention of the Commissioner for Local Government and Chieftaincy Affairs be drawn to our letter dated 2Rth June, 1976, and His Highness The Ovie of Agbon’s letter dated 13th June, 1986, to which there has been no reply. It is emphasised that Agbon Council of Chiefs still maintains its stand, and the Commissioner be further requested to cause a commission of inquiry to be instituted into the matter………………

…………………………………

4. That thereafter and subject to the finding and the recommendations of such inquiry, the appointment to the vacancy could be considered……………………………….”

Exhibit X (not copied) is the minutes of a meeting which His Excellency the Military Governor of Bendel State held in his office on 15th October, 1977 with His Highness The Ovie of AGBON and Chief J. O. Edewor. Exhibit 0 is the minutes of a meeting held by the Honourable Commissioner for Chieftaincy Affairs and Culture with a Delegation of Chiefs from AGBON Clan in respect of the Appointment of Otota of AGBON on Thursday, 13th October, 1977. In the course of the discussions Chief J. O. Urevbu said that – early in 1976, Chief Obodo Emanuwa, the then Otota of Agbon clan died and that inspite of the necessity that there should always be an Ovie and Otota of Agbon Clan, Government had still not approved the appointment of the Otota elect. He noted with dismay that the officials of the Ministry did not even write to them about the position of the nomination of Chief J.O. Edewor as their Otota-elect who was chosen by the Ehovbere Ekakuro (i.e. titled men of Eku after the then Resident had requested them to do so.”

The Hon. Commissioner, Dr. P.A. Igbafe raised a number of problems relating to the interpretation of the 1962 Declaration, the Davies Report on the Ovie Chieftaincy and other fundamental issues. He asked for instance whether the order of rotation would continue were an Otota to die before the Ovie. To this Chief Orevbu replied that –

“the two titles were separate and that nothing could change the order of rotation of either of them”. At the end of the deliberations, the Hon. Commissioner hoped –

“that some of the fundamental issues he had highlighted would give the members of the delegation an idea about the problems the Ministry had to solve before finalising action on the nomination of the Otota-elect.”

In Exhibit A, Chief D.E. Ekie from Eku “confirmed that there is a dispute about the Otota of Agbon which has not been settled between Kokori and Eku.

Finally on this point, Michael Oregun, the appellant’s witness had in his testimony in the High Court said –

“After the death of Chief Emanuwa, a meeting was summoned by the Ovie of Agbon in May, 1976, to discuss the appointment of a new Otota of Agbon. At that meeting, the Eku Sub-clan said that it was their turn to produce an Otota of Agbon and Kokori said it was still their turn to produce a candidate. Kokori based their claim on Agbon Constitution while Eku based their claim on the 1962 Declaration. During the argument at the meeting the Ovie was asked to send both the Constitution and the Declaration to Benin City for clarification. The Ovie agreed to send the documents. ”

From the above letters, evidence and minutes of meetings it seems so clear to me that there was a real dispute between the parties as to which sub-clan had the turn to nominate the next Otota. There were also certain fundamental issues to sort out as was so poignantly shown in the excerpts I have set down from Exhibit Q. These disputes and fundamental issues could not for the reasons I have given in this judgment be resolved by reference to Exhibit S.C.1 the Declaration of 1962, the letter of 1958 Exhibit C or the Agbon Constitution of 1958 Exhibits B and D. Only an Inquiry could, in the circumstances, have resolved them.

What was the attitude of the Governor and Government of Bendel State to this state of affairs In 1976/77 and indeed up to 1982 nothing seems to have happened inspite of the fact that the appellant was nominated by his sub-clan as far back to 1976. But matters took a dramatic turn in 1982. Following the failure of the Ovie of Agbon to react to the letter of the Eku sub-clan dated July 1976 Exhibit Y, and his failure to react positively to the letters to him by the Resident, Western Urhobo District dated 8th March, 1976, 30th march, 1976, the appellant, addressed a letter dated 7th January, 1980 to the Honourable Commissioner, Ministry of Local Government and Chieftaincy Affairs, Bendel State of Nigeria, Benin City. The letter reads:-

Dear Sir,

The Otota of Agbon Clan (Appointment of)

I wish to refer to the above matter and to state as follows:-

1. That by the Declaration made under Section 4(3) of the Chief’s Law, Cap.19 of the former Western Region; of the customary law Regulating an appointment to the “Otota Chieftaincy” approved on the 13th day of February, 1961 and registered on the 14th day of February, 1962, copy attached paragraph 2 therein, stipulated the order of rotation among the six villages of the Clan.
2. That the last incumbent of the said post. Chief Obodo Emanuwa, was from Kokori and he died in February 1976.
3. That as a result of the said declaration 1 above. it became the turn of Eku village, in the order of rotation and in a resolution dated the 14th day of July, 1976, I, Chief James Ogboko Edewor, was unanimously elected by the Okakuros and Ohovbores of Eku and this was passed on to the Ovie of Agbon Okpara I and a copy of same was sent to the then Resident, Western Urhobo Division, Orerokpe. A copy of that resolution is hereby enclosed for case of reference and perusal.”
4. That another delegation comprising of Okakuros and Ohovwores of Agbon Clan led by Chief J.O. Uvieghara, J.P. from Eku and made up of Chief A. Shwo from Orhokpor, Chief S.E. Ohokor from Igun, Chief Esieve from Kokori, Chief J. Ogbe Orevbu from Ovu and Edo Uke from Okpara met the then Commissioner of Chieftaincy Affairs sometime in 1977 on the same subject urging him to put into effect, the earlier resolution passed by the Eku Okakuros and Ohovwores appointing me as the Otota of Agbon but up till now, nothing has been heard about it. Vide letter submitted to the Honourable Commissioner, Ministry of Chieftaincy Affairs and Culture by the delegation, herein attached. I am therefore appealing to you through this medium in the interest of Justice to effect the resolution passed by the Eku Council of Chiefs and appoint me as the Otota of Agbon in accordance with the Declaration referred to in paragraph 1 of this letter.

Yours faithfully,

(Sgd.) Chief J.O. Edewor

(Olokun of Eku)”

Following this letter the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs, Benin City addressed a letter dated 13th April, 1982 to the Ovie of Agbon. The letter Exhibit F was in these terms:”

The Ovie of Agbon,

Ovie’s Palace

Okpara Inland,

Agbon.

u.f.s. The Secretary to the Local Government,

Ethiope Local Government,

Isiokolo.

Your Highness.

Appointment of Otota of AGBON

I am directed to inform you that the Governor-in-Council of the Bendel State of NIGERIA has directed that you should be requested to set in motion the machinery for appointing the Otota of AGBON in accordance with the 1962 Declaration of Customary Law regulating appointment to that Chieftaincy title. In this connection, Your Highness is expected to cause a meeting of the Kingmakers to be convened to consider the nomination of Chief James Ogboko Edewor who was nominated for the vacant title on 1st July, 1976 by the Eku sub-clan which is the next village group to nominate a candidate in accordance with the said declaration. The meeting is expected to be summoned by Your Highness within one month of the date of receipt of this letter.

2. The Secretary to the Ethiope Local Government should be present at the meeting as an observer.

I am,

Yours Highness’s obedient servant,

Permanent Secretary,

Ministry of Local Government & Chieftaincy Affairs”

The Ovie took no positive action on this letter, since in a reply dated 16th April, 1982 he merely indicated that “further development in the matter would be communicated to you.”

On 8th June, 1982 the Ministry of Local Government and Chieftaincy Affairs addressed a letter Exhibit Q to the Ovie. It read:-

“Our Ref. CN.506/T/25

His Highness Okpara 1,

The Ovie of Agbon,

Ovie’s Palace,

Okpara Inland,

Agbon.

u.f.s. The Secretary to the Local Government,

Ethiope Local Government.

isiokolo.

Your Highness,

Appointment of the Otota of Agbon

I am directed to refer to my letter No. CN .586/351 of 13th April, 1982, and your acknowledgment No.ACC. PS/1/82 of 16th April, 1982, which was signed by the Ag. Secretary to the Agbon Council of Chiefs. It is observed that in spite of an indication in your letter under reference to the effect that “further development in the matter would be communicated to me, no further correspondence was received from you.

2. Since you failed to comply with the Governor-in-Council s directive communicated to you in my letter No. CN .5861351 of 13th April, 1982 the Governor has been obliged to exercise his powers under Section 22(6)(b) of the Traditional Rulers and Chief’s Law 1976 by approving the appointment of Chief James Ogboko Edewor as the Clan Otota of Agbon, Ethiope Local Government Area, with effect from the 26th day of May, 1982. A copy of legal Notice B.S.L.N. 4 of 1982 published in the Supplement to Bendel State of Nigeria Extraordinary Gazette No. 25 Volume 19. of 20th May, 1982 notifying the approval is attached.
3. It is hoped that, with this appointment all parties involved in earlier misunderstandings on this issue will bury the hatchet and work together harmoniously for the peaceful and orderly development of Agbon Clan as a whole.

I am,

Your Highness’s Obedient Servant

Sgd. S.C. Nwajei

for Permanent Secretary,

Ministry of Local Government and Chieftaincy Affairs”

(Italics mine)

The Gazette Notice is Exhibit N and is in these terms:-

“Supplement to Bendel State of Nigeria Extraordinary Gazette.

No.25. Vol. 19, 26th May, 1982 …. Part B B.S.L.N. 4 of 1982.

THE TRADITIONAL RULERS AND CHIEFS LAW 1979. Appointment of James Ogboko Edewor as the Otota of Agbon. Date of Commencement: 20th May, 1982.

It is hereby notified for general information that in exercise of the powers conferred by Section 22(6)(b) of the Traditional Rulers and Chiefs Law 1979 and by virtue of all other laws enabling him in that behalf the Governor of the Bendel State of Nigeria has approved the appointment of JAMES OGBOKO EDEWOR as the Otota of Agbon in Ethiope Local Government Area with effect from the 26th day of May, 1982.

Dated at Benin City, this 26th day of May, 1982.

P.A. Uduebor,

Secretary to the Government,

Bendel State”

Finally on this point, Exhibit Z, the Certificate of Registration of A Traditional Chief Under Part IV of The Traditional Rulers and Chiefs Edict, 1979 read:-

“This is to Certify that Chief James Ogboko Edewor of Eku in Ethiope Local Government Council area has been Registered as the holder of the Traditional Chieftaincy Title of CLAN OTOTA OF AGBON, His Appointment having been approved on the 20th day of May, 1982 by the Governor of Bendel State. His Registration No. is TO/ET/82/13 Registered this 27th day of May. 1982.

(Sgd.) Frank I. Imouekhome,

Permanent Secretary.

for Chief Affairs”

A number of matters from the letters and actions taken by the Governor of Bendel State call for close examination. First, it can be seen quite clearly that before the letter of 8th June, 1982 Exhibit G no Inquiry was held. This is a matter to which I shall return. Secondly, in Exhibit G the Governor stated quite clearly that he derived his powers from Section 22(6)(b) of the Traditional Rulers and Chiefs Law, 1979. Thirdly, prior to the Governor’s action as in Exhibit G, the appellant had not been appointed Otota of Agbon by the Kingmakers. Taking the third point first, Sections 4 and 6 of Exhibit S.C.1 i.e. the Declaration of 1962 provides as follows.

“4. There are 60 Kingmakers in respect of this title who are the following Ehovbore: Ten most Senior Ehovbore from each of the six villages referred to in paragraph 1 and 2 above. For the avoidance of doubt it is hereby declared that seniority amongst Ehovbore, shall be determined by their chronological order of appointment.

………………………………

6. If the name of only one candidate is submitted by the village who appears to the Kingmakers to be qualified and not disqualified, they shall declare him to be appointed. If the names of more than one candidate are submitted who appears to the Kingmakers to be qualified and not disqualified, the names of the candidates shall be submitted to the vote of the kingmakers and the candidate who obtains the majority of the votes of the Kingmakers present and voting shall be declared appointed”

It was agreed by all the parties that the Kingmakers are constituted as stated in the Declaration. The power to appoint an Otota after selection by the appropriate sub-clan lies in them. In the instant case therefore prior to Exhibit G. The appellant had been selected by his Sub-clan but had not been appointed by the Kingmakers. As regards the second point, there was disagreement between the High Court and the Court Appeal as to whether the Governor acted under Section 22 or Section 23 of the Traditional Rulers and Chiefs Law, 1979. Because of the importance of the provisions of these two Sections. I shall set them down fully.

“Section 22(1) The Conferment of a Traditional Chieftaincy title shall be in accordance with the customary law and shall be subject to the approval of the prescribed authority or where the provisions of section 23 have been applied, to the approval of the Executive Council.

(2) Where a traditional chieftaincy title is conferred on a person by those entitled by customary law so to do and in accordance with customary law the prescribed authority or the Executive Council as the case may be, may approve the appointment.

(3) Where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority or the Executive Council as the case may be, may determine the dispute.

4. The decision of the prescribed authority or the Executive Council as the case may be –

(a) to approve or not to approve the conferment of a traditional chieftaincy title on a person;

or

(b) determine a dispute in accordance with sub-section (3) of this section shall not be questioned in any court.

(5) The prescribed authority shall not withhold approval of the conferment of a traditional chieftaincy title on a person if such conferment is made in accordance with the customary law regulating the conferment of the Chieftaincy title.

(6) The Executive Council may. on the application of an aggrieved party-

(a) review the decision of a prescribed authority made under section (3) of this section and substitute its own decision therefor: or

(b) approve the conferment of a traditional chieftaincy title on a person if such approval was withheld by the appropriate authority contrary to sub section (5) of this section.

(7) Before exercising the power vested in it by sub-section (6) of this section, the Executive Council may cause such enquiries as appear to it to be necessary or desirable to be held in accordance with Section 27 of this Edict.

(Italics mine).

Section 23(1) on the other hand provides as follows:-

“(1) Where a traditional Chieftaincy title in a federated clan is under customary law, not conferred by the prescribed authority, or where the holder of a traditional chieftaincy title in a federated clan is not subject to the jurisdiction of the prescribed authority under customary law, the Executive Council shall by order apply the provisions of this section to such traditional chieftaincy title.”

The Learned trial Judge, Akenzua, J. was emphatic when he held that-

in this case, the 4th defendant is not appointed under Section 22 of the law which deals with appointment where no Declaration is registered but under Section 23 of the Law by virtue of Exhibit V, the 1962 Declaration.”

Ajose-Adeogun, J.C.A. who wrote the lead judgment of the Court took the view, rightly in my opinion, that it was not for the learned trial Judge to make for the appellant herein (but respondent in the Court of Appeal) a different case from that he presented. Said the learned Justice.

“For one thing, it is not competent for a court to make out for a party to a suit a case which is different from that which such party has put forward before the Court. The case of the 1-3rd respondents was that the 4th respondent’s appointment was made under Section 22 of the Law. In support of that, they tendered the Certificate of Registration (Exhibit Z) which could only have been issued for an appointment under the said Section 22 of the law. There was the letter of the Permanent Secretary, Exhibit G …………………..It is difficult to appreciate how the lower court could possibly shift the basis of the above quoted exercise of the Governor’s powers as published in the Gazette”

Miss Obaseki for the 1-3rd defendants/respondents reiterated the position that the Governor exercised the powers he did under Section 22(6)(b) of the Traditional Chiefs Law, 1979. From all the facts of his case it seems to me that having regard to Sections 22(1)(3)(5) and (6), it could not have been under Section 23 that the Governor exercised the powers he did.

I think the solution is as was submitted by Chief Kehinde, S.A.N. It is settled law that if a person is entitled to a remedy, it is not really relevant whether it has been applied for under the wrong law. The important thing is whether he is entitled to the remedy. Falobi v. Falobi (1976) 9-10 S.C.1 or (1976) N.M.L.R. 109. The proper question was whether the appellant was entitled to be appointed.

Now coming to the first point highlighted above i.e. inquiry. The numerous exhibits I have set down above, as well as the fundamental issues referred to by the former Commissioner for Local Government and Chieftaincy Affairs in Exhibit Q, pointed to a dispute which required an inquiry. In fact the last portion of Exhibit G in which the Governor “hoped that the parties involved in earlier misunderstanding on this issue will bury the hatchet” is a recognition of a dispute. Furthermore, although it is not clear whether a prescribed authority had been appointed for the Ethiope Local Government Area pursuant to Section 21 of the Chiefs Edict 1979, the portion of Exhibit G in which the Bendel State Government directed the Ovie to summon the kingmakers to make the appointment of the appellant must be taken as an indication that the Government regarded the Kingmakers as the prescribed authority. It must also be assumed that the decision of the Governor to act under Section 22(6)(b) was because the Kingmakers refused to act under Subsection 5 of Section 22.

It is a fair inference to make from the evidence both oral and documentary that the Kingmakers refused to act because of the dispute as to which sub-clan was entitled to nominate the next Otota. The letter Exhibit W written by the appellant to the Commissioner for Local Government must also be presumed to be the letter from an aggrieved party for purposes of Sub-section 6 of Section 22 of the Chiefs Law 1979.

I think that in the face of the conflict in the oral evidence as to what happens when Otota dies before the Ovie; in the face of the inability of Exhibit S.C.1 to provide a solution to that conflict and in the face of the conflicting claims of the Kokori and Eku sub-clans to the Ototaship based on one Constitution or the other, no one can properly argue that there is no dispute. Subsection 7 of Section 22 provides that before exercising the powers under Section 22(6) the Governor may cause such enquiries as he thinks desirable to be held. An enquiry under that subsection is to be in accordance with the provisions of Section 27 of the Traditional Rulers and Chiefs Edict 1979. Under Section 27, the provisions of the Commission of Inquiry Law shall apply to an inquiry under the Edict. Chief Kehinde, S.A.N., as earlier indicated, has argued that the use of the word ‘may’, in subsection 7 makes it discretionary and the Governor was not obliged to hold an inquiry. Kehinde Sofota, S.A.N., again as earlier indicated, argued that in the circumstances of this case may in subsection 7 ought to be interpreted as ‘must’. Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 S.R.N.S.W. 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michell v. Baker (1800) 44 CH.D 282. But it has been conceded that the word may acquire a mandatory meaning from the con in which it is used. See Johnson’s Tyre Foundary Pty Ltd. v. Shire of Maffra (1949) A.L.R. 88. The word may also acquires a mandatory meaning from the circumstances in which it is used. Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts. In Re Baker (Supra) Cotton L.J. said – “I think great misconception is caused by saying that in some cases “may” means must. It never can mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by the word ‘may’, it becomes his duty to exercise it”. In Over v. Felton (1966) A.LR. 1088 Jenkyn, J. said that

“it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation”,

A fairly similar situation arose in Oloyo v. Aiegbe (1983) 2 S.C.N.L.R. 35 where this Court among other things had to decide whether the word ‘shall’ used in section 103(1) of the Constitution of the Federal Republic of NIGERIA 1979 had a peremptory or directory meaning.

There I was of the view that –

“there is no general rule for determining when the use of the word ‘shall’ implies a peremptory or directory mandate but as Lord Campbell L.C. said in Liverpool Borough Bank v. Turner (1860) 2 De G.F & J 582 at pp. 587 and 588 it is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed”

One could say almost the same thing of the occasions when ‘may’ may acquire a mandatory meaning or retain its generally permissive meaning. In the circumstances of this Suit, I am of the view that the word ‘may’ had a mandatory meaning and that the Governor was bound to hold an inquiry before exercising the powers which he purported to do under Section 22(6)(b) of the Traditional Rulers and Chiefs Edict 1979. Not doing so, was a gross irregularity. Further, the purported appointment under Subsection 6(b) was irregular and contrary to law as it was in breach of Subsection 7 and Section 27 of the Edict. The Governor received the representations of the appellant, the aggrieved party, in Exhibit W and, without holding an inquiry at which the case of the other parties would have been ventilated, proceeded to act in appointing the appellant. That in my view is also a breach of natural justice which renders his actions null. In the case of The Queen v. The Resident Ijebu Province Ex Parte J.O. Oshinlaja (1957) W.R.L.R. 173 it was decided that while Courts will not interfere in the matter of the selection of a chief, if something is being done which is contrary to natural justice or things required by law are not done, the Court will intervene. So it is in this Suit.

Chief Bayo Kehinde, S.A.N. had, avoiding the problem of inquiry, sought refuge in Section 22(3) of the Chiefs Edict which I have set down earlier in this judgment. In that subsection, the Executive Council is empowered to settle a dispute which arises in the con of that provision. I am afraid that this subsection does not avail the appellant.

The dispute envisaged by subsection 3 of Section 22 is one which arises as to “whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or whether………. it has been conferred on the right person.” That is not the dispute in this Suit. No traditional chieftaincy title had been conferred on any person if one regards conferment as what the Kingmakers would have done in this Suit. The dispute was rather as to which sub-clan was entitled to have its candidate conferred with the title.

All I have written, appears to me to have dealt with all the issues raised under ground 2 of the Appellant’s grounds of appeal. In so far as the Court of Appeal appeared to have granted relief (a) claimed by the respondents on the basis of paragraph 25 (1) of the Agbon Constitution of 1959, I would agree with the Appellant’s counsel that that would be tantamount to importing that paragraph into Exhibit S.C.1. I am, however, unable to go further and agree that the Court of Appeal erred in granting that relief. In the face of the evidence of the parties, including the testimony of the appellant and his witness, Michael Orogun, I do not see how the Court could have failed to grant that relief. I would also wish to add that the Court of Appeal held the letter of 13th April, 1982 irregular making whatever was done thereafter irregular. The purport of my decision is that even if it could be argued that the letter was not irregular, and it cannot be so argued, the action of the Governor in purporting to act under Section 22(6)(b) without first holding an inquiry was irregular.

As regards ground 1, the appellant is on a much more sticky wicket. The ground itself is incompetent as it was not argued before the Court of Appeal before raising it in this Court. Of more importance is the fact that the ground being one of mixed law and fact violated Section 213(3) of the Constitution and was struck out by this Court on 17th November, 1986. It was an act of indulgence that counsel was allowed to argue that ground before this Court. The appellant’s position on this ground is from every point of view untenable, for as long ago as 30th September, 1982, Obi, J. had settled the issue of locus standi.

Having regard to the foregoing, this appeal must fail. I accordingly dismiss it and affirm the judgment of the Court of Appeal, Benin Judicial Division dated 3rd December, 1985: The Plaintiffs/Respondents are entitled to costs which I assess at N300.00.

BELLO, J.S.C. (Presiding): I have had the privilege of reading in draft the judgment delivered by my learned brother, Nnamani, J.S.C. For the reasons so comprehensively stated therein, I agree the appeal should be dismissed and is hereby dismissed with N300 costs to the Plaintiffs/Respondents.

ANIAGOLU, J.S.C.: The judgment just delivered by my learned brother, Nnamani, J.S.C., was made available to me in draft. I agree with his reasoning and conclusion.

It is obvious that the Appellant and the Respondents were not agreed on which village should produce the next Otota – whether Kokori, as contended by the Respondents by reason of the fact that the Ovie was still alive; or Eku, as contended by the Appellant by reason of the fact that the incumbent Otota was dead and the next village in the line of succession should produce the next Otota.

According to the Respondents, as long as the Ovie of Agbon clan lives and the Otota dies, the sub-clan which produced the deceased Otota will continue to produce the next Otota, the right of the production of the Otota passing to the next sub-clan only when the Ovie dies. The Appellant has however contended to the contrary.

According to him once the Otota dies the next village in the line of succession will produce the new Otota irrespective of whether the Ovie was alive. There was thus a fundamental dispute between the parties. Section 22(7) of the Traditional Rulers and Chiefs Edict 1979 has provided that before the Executive Council should exercise the powers vested in it under subsection 6, it may cause such inquiries as appear to it to be necessary or desirable to be held in accordance with section 27 of the Edict. The said section 27 has made provision for inquiry to be held where there is a dispute.

Therefore, accepting Exhibit S. C.1 as being the rightful declaration of the Customary Law regulating the appointment of the Otota of Agbon Chieftaincy. the Executive Council had jumped the gun in appointing the Appellant the Otota without holding the inquiry prescribed by the Law. It had neither the jurisdiction nor the power to do so, and therefore, the appointment of the Appellant as the Otota of Agbon in the circumstances was null and void and of no legal effect. I would therefore also dismiss this appeal, and hereby dismiss it. I affirm the judgment of the Court of Appeal and abide by the costs as decreed in the lead judgment of my brother, Nnamani, J.S.C.

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SC.113/1986